Brandenburg v. LaBARRE

DEBORAH S. EYLER, J. Jason and Nicole Brandenburg, the appellants, challenge an order of the Circuit Court for Anne Arundel County awarding Laura and David LaBarre, the appellees, visitation with the appellants’ four minor children. 1 The appellees are the paternal grandparents of the children. 2 The appellants pose two questions for our review, which we have combined and rephrased as one: Did the circuit court err in finding that exceptional circumstances existed justifying an award of grandparental visitation rights? We answer this question in the affirmative and, accordingly, shall reverse the visitation order. ¹⁸⁰ FACTS AND PROCEEDINGS Jason and Nicole were married on June 2, 1998. They have four children: Tyler, born July 7, 1998 (age 11); Zachary, born September 14, 2001 (age 8); Matthew, born August 9, 2004 (age 5); and Jordan, born May 18, 2007 (age 3). They currently reside in Glen Burnie. 3 At the time of the trial in this matter, the LaBarres had been married for just over 30 years.

Jason was almost two years old when they married. By all accounts, David has been the only father figure in Jason’s life. The LaBarres also reside in Glen Burnie. At all relevant times, Jason was employed full-time with BGE Home.

From 2004 until May of 2006, Nicole was employed on a part-time basis for various employers. In June of 2006, she began working full time for SunTrust Bank in Annapolis. She continued to work there until February of 2008. 4 Laura does not work due to a neck injury she sustained on the job in 1999. David works full time for a roofing and siding company.

He also works many Saturdays. From 2004 until June of 2006, Laura and David provided occasional care for the children, depending on the Branden-burgs’ needs, and spent time with them on weekends and holidays when possible. For an 18-month period between June of 2006 and February of 2008, Laura provided free childcare for the children in her home on a daily basis, with the exception of 8 weeks in the summer of 2007 following Jordan’s birth. During that time period, Matthew and Jordan also spent Sunday nights at the LaBarre house, 5 so that Nicole could attend an early Monday morning meeting without hav ¹⁸¹ ing to wake them. 6 David assisted in caring for the children on the occasions when they were at his house in the evenings and on weekends.

In February of 2008, the parties became involved in a personal dispute unrelated to the children. In the aftermath of this fight, David told Jason that Laura would no longer provide free childcare. Thereafter, the Brandenburgs cut off all contact between their children and the LaBarres. At that time, Tyler was 9, Zachary was 6, Matthew was 3, and Jordan was almost 9 months old.

On April 23, 2008, the LaBarres filed a complaint to establish visitation rights. They alleged that they had provided daycare for their grandchildren since 2004, including regular overnight care; that, “in virtually all respects, [they] have served as parent figures to all of these grandchildren for many years”; and that all four children were “extremely bonded” to them, thus “creating exceptional circumstances.” They sought an order granting them a schedule of visitation (not specified) with the children. The Brandenburgs answered the complaint and filed a counterclaim for abuse of process. On June 16 and 17 and August 10, 2009, the case was tried to the court. 7 Laura and David testified on their own behalf and called 13 witnesses to testify as to their character and the nature of their relationship with the grandchildren. 8 Overall, the evidence presented by the LaBarres supported their allegation that they had cared for their grandchildren on a nearly ¹⁸² continuous basis from 2004 until 2008, including weekly overnight care for several of the children.

The testimony also supported their allegation that they had had a loving, bonded relationship with the grandchildren. Jason and Nicole testified on their own behalf and called 10 witnesses to testify about their character, the character of the LaBarres, and the then-current well-being of the children. 9 Their evidence supported their claim that Laura had provided daycare continuously for the 18-month period beginning in June of 2006, but that, aside from that period, the children’s interactions with their grandparents were occasional. There also was testimony that the LaBarres were habitual marijuana smokers; that David regularly used alcohol; that Laura suffered from bipolar disorder, but was not currently taking medication for the condition; and that the LaBarres physically disciplined the grandchildren against the wishes of their parents. Finally, there was testimony that the four children were thriving, both academically and socially, in the approximately 16 months since they had ceased all contact with the La-Barres.

At the conclusion of testimony and argument, the trial court held the matter sub curia. On October 28, 2009, the circuit court entered an order granting the LaBarres “overnight unsupervised visitation” with the four children on the third weekend of every month from 5 p.m. on Friday until 7:00 p.m. on Saturday. In addition, the LaBarres were to have “one full and continuous week of unsupervised visitation” with the children each summer. Finally, the order directed the LaBarres to “refrain from any use of alcohol or illegal substances during said visits” and to “respect and abide by any reasonable instructions given ¹⁸³ to them by [the Brandenburgs] pertaining to supervision and care of the [ ] children.” In an accompanying memorandum opinion, the circuit court made the following relevant findings of fact and conclusions of law.

After summarizing the evidence presented by each side, as discussed above, the trial court found the evidence presented by the LaBarres “to be highly credible” and the evidence presented by the Brandenburgs “to be lacking in credibility.” The court found that the evidence showed that the LaBarres were “essentially good people with some human flaws that, it must be noted, have not had a negative effect upon [their] relationship with the four children.” The trial judge found that David is a “stern man with a strong personality” who “may on occasion rub certain people the wrong way,” but rejected evidence presented by the Brandenburgs that he ever had abused the minor children. As to Laura, the court found that she indeed suffers from bipolar disorder, by her own admission, but concluded that the evidence was such that “her condition is well under control and has in no way diminished her capacity as a caregiver.” The court found that both Laura and David are occasional marijuana users, again by their own admission. It found, however, that they had “assiduously avoided using marijuana in any manner that could affect their ability to provide care for and supervision over the children in question” and that they similarly would not allow it to do so in the future. Finally, the court noted that the LaBarres’ “alleged character flaws” had not seemed to bother the Brandenburgs when the children had been in their daily care.

Citing the Maryland Grandparents Visitation Statute (“GVS”), Md.Code (2006 Repl. VoL, 2009 Supp.), Section 9-102 of the Family Law Article (“FL”), and Koshko v. Haining, 398 Md. 404 , 921 A.2d 171 (2007), the court explained that a threshold showing of either parental unfitness or exceptional circumstances is required before grandparental visitation can be ordered. As parental unfitness was not alleged, it considered only whether exceptional circumstances had been demon ¹⁸⁴ strated. The court emphasized that this was an “ ‘inherently fact-specific analysis,’ ” quoting Aumiller v. Aumiller, 183 Md.App. 71, 81 , 959 A.2d 849 (2008), to be determined on a case-by-case basis, but requiring a showing of “ ‘significant deleterious effect,”’ id. at 84 , 959 A.2d 849 , on the minor children caused by the lack of grandparental visitation.

Applying the law to the facts before it, the court opined as follows: In the instant case, it belies both commonsense and a decent regard for the importance of human relationships to suggest, as the [Brandenburgs] do, that the four children in question suffered no “significant deleterious effect” when, as the result of a bitter dispute between their parents and paternal grandparents, they were swiftly and abruptly denied any contact with close and loving relatives whom they had grown accustomed to seeing, for hours at a time, on a daily basis over a period of several years. And it belies commonsense and a decent regard for the importance of human relationships to suggest that the [Brandenburgs’] four children are not continuing to suffer harm as, at the time of this opinion, they have been denied contact with the [LaBarres] for an uninterrupted period of nearly two years. The [LaBarres] are not, as the [Brandenburgs] claim, the proverbial grandparents of benign cliche’ who, on occasion, drop by to take the grandkids to the zoo. To the contrary, as we have seen, the [LaBarres] were, along with the [Brandenburgs], the essential and ever-present adult figures in the lives of all four children.... [T]hree of the four children had been cared for by the [LaBarres], on a daily basis during vital formative years, for at least half their lives at the time they were suddenly and summarily deprived of that care.

The court rejected the Brandenburgs’ assertion that the LaBarres needed to present direct evidence of harm to the minor children, concluding that this would be impossible where, as here, they had been denied contact with the children. It emphasized that it was the court’s role, as the fact finder, to draw reasonable inferences from the facts presented ¹⁸⁵ and that it was a “commonsense inference[ ] from the particular facts of the instant case” that significant deleterious effect had resulted to the children. Finally, despite its earlier recognition that the Branden-burgs’ parental fitness was not challenged, the trial court concluded that, under the facts presented, the presumption that fit parents act in the best interests of their children had been rebutted. It found that the Brandenburgs “allowed a dispute among adults to overpower consideration of their ehildren[’]s[ ] best interests.” Having concluded that the threshold of exceptional circumstances had been met, the court turned to the best interests analysis.

After considering the factors set forth in Fairbanks v. McCarter, 330 Md. 39, 50 , 622 A.2d 121 (1993), overruled in part by Koshko, supra, 398 Md. at 445 , 921 A.2d 171 , 10 the court concluded that it was in the best interests of the minor children to have visitation with their grandparents. Finally, the court denied the Brandenburgs’ counterclaim for abuse of process. 11 The Brandenburgs noted a timely appeal from the visitation order and moved for a stay of the order pending resolution of the instant appeal. The circuit court granted the motion for stay. ¹⁸⁶ DISCUSSION The Brandenburgs, as the undisputedly fit parents of the minor children, “are invested with the fundamental right of parents generally to direct and control the upbringing of their children.” Koshko, supra, 398 Md. at 422-23 , 921 A.2d 171 . “This liberty interest provides the constitutional context which looms over any judicial rumination on the question of custody or visitation.” Id. at 423 , 921 A.2d 171 . In the instant case, the trial court concluded, based on “commonsense inferences” drawn from its factual finding that the LaBarres had been “essential and ever-present adult figures in the lives of all four children,” that exceptional circumstances existed permitting the court to substitute its judgment of the best interests of the minor children for that of the parents.

For the reasons that follow, we conclude that this was error and that the visitation order must be vacated. We recently explained that [o]rders related to visitation or custody are generally within the sound discretion of the trial court, not to be disturbed unless there has been a clear abuse of discretion. See Walter v. Gunter, 367 Md. 386, 391-92 , 788 A.2d 609 (2002); Beckman v. Boggs, 337 Md. 688, 703 , 655 A.2d 901 (1995). However, where the order involves an interpretation and application of statutory and case law, the appellate court must determine whether the circuit court’s conclusions are “legally correct” under a de novo standard of review.

Walter, 367 Md. at 391-92 , 788 A.2d 609 . Barrett v. Ayres, 186 Md.App. 1, 10 , 972 A.2d 905 (2009). The instant order involved the application of the law of third-party visitation to the facts and, thus, we review the ultimate order de novo. We begin with some background.

Parents and grandparents do not stand on the same legal footing with respect to visitation. A parent’s right to visitation is rooted in a fundamental constitutional liberty interest, while any right to visitation possessed by grandparents “is solely of statutory origin.” Koshko, supra, 398 Md. at 423 , 921 A.2d 171 . Maryland’s ¹⁸⁷ GVS provides that “[a]n equity court may: (1) consider a petition for reasonable visitation of a grandchild by a grandparent; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent.” 12 FL § 9-102. In 2000, the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), calling into question the constitutionality of the GVS.

In Troxel , a plurality of the Court held that application of a grandparental visitation statute in a manner that accords no deference to the decision of a fit parent to deny or limit visitation is unconstitutional because it infringes upon the parent’s fundamental right, under the Due Process Clause of the 14th Amendment, to make decisions about the care, custody, and control of his (or her) children. Post-Troxel, in Koshko, supra, our Court of Appeals was presented with a direct challenge to the constitutionality of the GVS. That case, like the instant case, involved a married couple — the Koshkos — who opposed visitation between their three minor children 13 and the children’s maternal grandparents — the Hainings. Like the situation in the case at bar, a bitter personal dispute unrelated to the children was the impetus for the Koshkos to cut off contact and for the Hainings to petition for visitation pursuant to the GVS.

After a trial, the circuit court found that it was in the best